ML19305B768
| ML19305B768 | |
| Person / Time | |
|---|---|
| Issue date: | 02/29/1980 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 SECY-80-039, SECY-80-39, NUDOCS 8003200290 | |
| Download: ML19305B768 (60) | |
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p,g4 U NIT E D STATES NUCLEAR REG UL Ah0RY C OMMIS SIO N in the matter of:
DISCUSSION OF SECY-80 SECTION 401 OF THE ERA 0F 1974 AND ITS IMPACT UPON THE EMPLOYMENT PRACTICES OF NRC LICENSEES AND LICENSE APPLICANTS P1 ace:
washington, D. C.
Date:
February 29, 1980 pages:
1-59 s
INTERNATICNAL VERBATIM REPCRTERS. INC.
499 SOUTH CAPITCL STREET S. W. SUITE 107 WASH'MTON, D. C. 20002 c.J2 484-3550 8003R00MO
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UNITED STATES
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NUCLEAR REGULATORY COMMISSION l
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PUBLIC HEARING 5 In the Matter of:
l DISCUSSION OF SECY-80 SECTION 401 3
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OF THE ERA OF 1974 AND ITS IMPACT 7
UPON THE EMPLOYMENT PRACTICES OF NRC 8
LICENSEES AND LICENSE APPLICANTS 9
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Commissioner's Conference Room 1717 H Street, N.W.
33 Washington, D.C.
Friday, February 29, 1980 15 The Commission met, pursuant to notice, for a 16 public meeting of the above-entitled matter, at 2:03 p.m.,
17 EFORE :
18 JOHN F. AHEARNE, CHAIRMAN 39 VICTOR GILINSKY, COMMISSIONER 20 RICHARD T. KENNEDY, COMMISSIONER 21 PETER A. BRADFORD, COMMISSIONER 22 JOSEPH M.
HEND RIE, COMMISSIONER 23 24
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C O N T _E.N T _S
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3 Discussion of SECY-80 Section 401 of the ERA of 1974 &
Its impact upon the Employment Practices of NRC Licensees 4
and license-applicants.
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2 CHAIRMAN AHEARNE: We are going to start the meetin'g.
3 Mr. Gilinsky had said that he was not going to attend. Messers.
Kennedy and Bradford will be here shortly.
We are here to dis-4 I
S cuss a fairly complex issue. We have a paper from the Executive o
Director discussing it. It is a question of how do we apply 7
Section 401 of the Energy Reorganization Act, particularly with a
respect to employment practices.
9 I recognize it is a subject on which there has been io some significant discussion over at least the past year. I it thought it was appropriate to try to clarify some of the issues 12 by having a discussion meeting.
i3 Kevin, as Deputy EDO, I gather you are in the lead.
34 So would you like to start?
MR. CORNELL: Fine. I think what we would like to do 15 i3 is have the Office of the Executive Legal Director outline some 37.of the legal constraints involved and then turn to Ed Tucker from the Law opportunity Of fice to discuss some of the policy ig implications of what the various options are.
i, CEAIRMAN AREARNE: I assume the Executive Director's 20
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office will have some position to state?
21 MR. CORNELL: Yes.
CHAIRMAN AHEARNE: Okay, Tom?
MR. ENGELHARDT: Section-90-39, which is-the paper undEr review at this meeting, deals with the policy issue involving 25 I
5 the application of Section 401 of the Energy Reorganization
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Act of 1974 to NRC licensees and to applicants for NRC licenses'.
1 In brief, Section401forbidessexdiscriminationinl l
certain NRC activities, including its licensing activities.. The 5
language of Section 401 and the underlying legislative history 6
are rather ambiguous with respect to wnether it extends to employment practiets of NRC licensees and applicants for 8
licenses.
As a result, the statute is the subject of differing
'O interpretations as to its applicability to the NRC licensing process.
SECY'80 contains a detailed discussion of Section 12 401 and describes the alternatives available to the Commission 13 for appliing Section 401 to its licensing activity.
14 Hudson Ragan, the Deputy Director of the Division of Operations and Administration, the Office of Executive Legal 15 16 Director, will briefly d' scribe the legal background of this matter e
17 a d the alternative courses of action presented in the paper n
18 SECY 80-39.
19 CHAIRMAN AHEARNE: Hudson, welcome.
20 MR. RAGAN:-Mr. Chairman, as Tom has pointed out, the issue stems from Section 401 of the Energy Reorganization Act 21 22 of 1974 and paraphrased slightly, Section 401 provides that no 23 person shall, on the grounds of sex, be excluded from partici-24 ipation in the -- being denied a license -- be 0.tni cd the l
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tenefits of or be subject to discrimination under any program or 25
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3 activity carried on or receiving federal assistance under the j
[j 2 Act.
3 Section 401 goes on to state that the provisions of 8 the Act of that section, will be enforced through agency pro-l 5 visions and rules that are established with respect to racial other discrimination unde) Title VI of the civil Rights Act.
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7 Section 401 was added to' both the House and Senate i
bills which formad the basis for the Reorganization Act of 1974 a
r ther late in the legislative process, which may account, 9
a to 10 some extent for the limited discussion or guidance in the House 11 and Senate report with respect to this section.
12 The House report simply states that Section 401 bars 13 discrimination in connection with the license, activity, or 14 federal assistance. The Senate report contains that same state-1 I
me t but adds this, " Sex discrimination is provided under Title is n
to II of the 1964 Civil Rights' Act, but sex discrimination is not 17 prohibited under Title VI which relates to federally-assisted is Programs."
19 This amendment says that no person shall, on the 20 grounds of sex, be excluded from or denied the benefits of, or 21 he subjected to discrimination under any program in this par-22 ticular Act.
23 Until such time as Title VI of the Civil Rights Act is 24 amended, this approach remains necessary. On the basis of our i
23 legal analysis, which is fairly detailed in the paper, we have l
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i reached the conclusion that tho wording of Section 401 is
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2 ambiguous and that the legislative history is not despositive 3
of that ambiguity.
Consequently, it was our view that the interpretation 4
of Section 401 is a discretionary one and two alternatives have 5
i been put forward in the paper. The one alternative is to adapt 6
Section 401 to require only that the Commission itself not 7
discriminate on the basis of sex in its licensing and regulatory aI activities, which it does now.
10 The other alternative would be to, as an add-on to that particular alternative, interpret Section 401 to require a
- i determination as to whether the employment practices of an 12 applicant or for a Commission license or a Commission licensee, i3 results.inssex discrimination.
i, With respect to alternative one, the legislative 15 history of Section 401 can be read to reflect a congressional intent to do no more than remedy a perceived effect or defect
,7 in Title VI of the Civil Rights Act. That is to prohibit sex la discrimination in connection with NRC financial assistance programs.
On the other hand, and with respect to alternative two, it could be said that the Senate report is; commenting only on the phrase " federal assistance" and does not intend to indicate that the sole or primary purpose of Section 401 is to 2a provide Title VI of the Civil Rights Act and that these two l
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in effect what we are saying, is that these two rationale here
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2-are susceptible here to two interpretations.
3I That is essentially the legal implications as we have 4
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l had to term them.
5 CHAIRMAN AHEARNE: Any other --
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6l MR. RAGAN: Nothing 'else at this time.
7 CHAIRMAN AHEARNE:
General Counsel?
8 MR. BICKWIT: I agree entirely that one could make agruments for either conclusion and defend them without fear.
9 10 CHAIRMAN AHEARNE:
Legally?
11 MR. BICKWIT: Yes.
12 CHAIRMAN AHEARNE: All right. John or Ed?
13 MR. TUCKER: Before actually getting into the portion 14 of the discussion dealing with the Department of Justice review 15 of our actions with respect to 401, let me --
16 COMMISSIONER BRADFORD: Are you all saying that if two 17 different agencies, one took route A and one took route B, bo th is would be sustained incourt?
If not, how could you take either 39 position without fear?
MR. BICKWIT: I am inclined to think yes,that both l
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l would, that the statute is so ambiguous that in either case 21 the court could say this is a reasonable intercretation of the 22 law and we will defer.
l 23 CHAIRMAN AHEARNE:Your conclusion really is that even 24 if they were travi2ag it through two different courts and 25 got up to the Supreme Court, the Supreme Court would just as i
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well say yes, both of these are reasonable interpretations of
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d the law?
3 MR. BICKWIT: That is right.
s CHAIRMAN AHEARNE:
It would not ccme dcwn on a single 5
interpretation?
6 MR. BICKi1IT: Yes.
7 MR. ENGLEHARDT: That's one way it could come out. I e don't know if it would actually. They may decide that one or another is a better course a6d they would go that route but it is certainly conceivable that it could come out that way with the court finding both interpretations and both applications 12 to be covered by the legislative language.
'3 COMMISSIONER HENDRIE: Does 401 cover both the DOE's Id side and NRC?-
15
. MR. ENGELHARDT: Yes, both.
16 COMMISSIONER HENDRIE: What has been the action on the 17 DOE side?
18 MR. TUCKER: DOE has full coverage and the reason why 19 it really doesn't give them that much heartache is because as 20 far as license activity under Title VI, there are only basically l
21 two types of activities. One is patent licenses or something 22 else but they are rather insignificant in relation to the kind of l
23 license activities carried on by the NRC.
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2d I would just like to. point out I don't want to get into c
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25 a hassle with Ehe legal staff concerning the interpretation.
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CHAIRMAN AHEARNE: Wa do all tho tims, Ed.
.v.R. TUCKER: But it would just appear to me that es-
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2 santially the language is that no person shall, on the ground 3
ifofsex,beexcludedfromparticipationandbedeniedalicense, 3
lltm denied the benefits of, or be subjected to discrimination 5
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, 'under any program or activity carried on or receiving federal financial assistance.
7 So we think they are saying two things there. They g
.are saying, first of all, they are touching upon the license
'd Process and number two, they are touching upon federal financial
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l assistance.
It is not at all unusual for the Congress to put 11 3 clarifying language in legislation with trying to reflect pro-12 visions of Title VI to say the reason we are doing is to perfect r-13
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it to include sex discrimination. I do not think that precludes 14 the applicability of Section 401 to the licensing process.
I think there is a good argument that the intent was 16 to tie it to the licensing process and also to perfect the 17 provisions of Title VI.
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d-MR. BICKWIT: I agree. I think that is a good argument.
19 An additi6nal string to that is that Title VI does not use the 20 words carry on. It uses only the words federal financial 21 liassistance.
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On the other hand, 'and I would say that I would be 23 inclined to come out that way if there weren't any legislative
- 6. i!history, but when you look at the legislative history, the
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, thing that impresses you is that the legislative history alone I
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12 gushoc you on the other sido co that I ctand on my original.
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2 proposition.
MR. TUCKER:
The Department of Justice has courses 3
lo, n sex discrimination. It was established in August of 1977 to 4
l' rdinate a view'of all laws, regulations, guidelines, policies c
5 and procedures of the federal government for actua'l or potential 6J ldiscrimination on the basis df sex.
7, In September of 1978, the tax courts met with representatives of the Of fice of the Executive Legal Director, and -- the staf f assigned to the responsibility for coordinating 10 the task force activities.
11 So in these discussions, questions. were raised con-l 12 cerning the appropriateness of NRC regulations intended to l
j implement Title IX or Section 401.
The task force noted that 14 the NRC has included provisions of Section 401 in part IV 15.I which af fectuates the provisions of Title VI of the Civil Rights 16 Act of 19 64 That is federal financial ascistance.
17 It was noted that Section 401 which is the licensing 18 ' function and employment activities, whereas federal financial 19 assistance under Part 4 is limited to grants, loans or contracts.
20 Moreover, the sanctions for non-compliance with Part 4 involve 21 termination of financial assistance.
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This obviously would not be appropriate for its 23 application to licensees since there are no funds involved.
24 The task force has generally agreed with the ' basic interpretations
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'!> and codifications of the statute by the NRC staff but has l
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12 1 tccommanded that the agency develop a eschanism for enforcing the
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The only problem Justice had with our interpretations, 4 they weren't adding anything new to our analysis, just saying development enforcement mechanism. Specifically they have proposed 5
the following, that the NRC should modify Part 4 to indicate that 6
'Part 4 does not cover employmentrpractices of licensees because 7
- but should be modified to enccmpass enforcement of Section g
401. Licensees should be required to post notices regarding non-9
' discrimination on the basis of sex, procedures in filing com-plaints and sanctions for violation of the NRC regulations.
That is civil penalty and revocation of licenses is
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provided in Part 19.
Also applicants for licenses should show no violation of Section 401 as a condition of licensing.
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14 As has bee n noted in the earlier discussion, the 15 legal staff is of the opinion that the Commission has the 16 discretion to adopt either alternative one or alternative two.
17 The stated pro for alternative one is that the NRC 18 would not become invdived in an area which is within the 19 jurisdiction of other federal agencies which have substantial l
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expertise in employmbnt discrimination.
21 The c6n that'has been stated is that the alternative 22 would preclude the use of NRC Jicensing and the regulatory 23 l process as an additional means of enforcing the overall federal 24
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2 With respect to alternative two which would extend 3
this provision to our licensees, the stated pro is that the 4
NRC, licensing and regulatory process would be available as a 5
means of enforcing the overall federal policf against sex discrimination and two kinds have been identified for alternative 6
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y one is that the licensing process could be affected 8
substantially -- affected by substantially increasing the time 9
required for the processing of the license application or modification and that the NRC would become another federal 11 agency involved in the protection of licensee employees from sex discrimination, thereby duplicating the enforcement ac-f-
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tivities of other federal agencies.
14 In the body of -the paper, the former Executive 15 Director for operations has recomnended the adoption of altern-16 ative one for two reasons.
One, other federal agencies which 17 have substantial experience in the field of EEO already have 18 the requisite authority and expertise to deal with allegations 19 of sex discrimination directed at most of the NRC licensees or 20 perspective and present applicants for NRC licenses.
i 21 Secondly, at a time in the evolution of the. NRC where 22l personnel are necessary for the implementation of a. host of I
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l priority programs that are in short supply, it is not considered 24 1
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prudent to divert 9 personnel to the implenentation of a program 25.
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1 lwhich is bsing or can be dono by other fedsral agencies.
I The former EDO goes on to say that the "NRC is
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2 3 especially qualified and has the sole responsibility in many in tances to insure that the recent redirected programs related s
4 to health and safety of the public,. and the protection of the 3
nv r nmen, are ully developed and implemented and that they 6j
) should dedicate its efforts and unlimired resources to these 7
high priority programs."
3 As noted in Enclosure F, the Office of EEO does not 9
concur with their recommendations. The arguments set forth in the recommendations related to duplication of effort of other federal establishments and a question of the appropriateness i of deployment of additional personnel to assure implementation
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should not, in my estimation, be the rationale for determining 14 Commission statutory responsibility in any area, even though 15 the EEOC and the Office of Federal Contract Compliance Programs 16 have primary responsibilities for enforcing non-discrimination 17 and employment in the federal sector oz :by government con-18 tractors.
19 It. appears to me that the overall
- federal effort to 20 a hieve the equality of employment opportunities would obviously c
21 be enhanced with the additional leverage that could be brought 22 to bear in the light of NRC prohibitions and sanctions as they 23
. pertain to licensees and applicants.
24
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1timpicmant high priority rcdirected programs, I cortainly agroo l
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2 radiological health and safety consideration should take t
3 Priority.
4 This, in my estimation, should not, however,be the 5
major determinant with respect to a decision on statutory 6
civil rights responsibilities.
Taking into account high 7,. priority programs, it would still appear prudent to develop a minimal enforcement procedures based on the. ability: to commit 9
staff. This could primarily take the form of technical assistance 10 on a limited basis to promote compliance with Section 401; al-11 though implementation and enforcement would unquestionably be difficult, the impact could be less in the through development 12 of rational enforement procedures, particularly in the area of j3
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san tions.
c 14 The Department of Justice recommends that the NRC
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!ke 16 ll gulations regnire civil penalty or revocation of a license for Ia violation of Section 401 as provided in 10 CFR, Part 19.32 be 17 r tained.
e la Justice also proposes that applicants for licenses 19 show no violation of 401 as a condition of licensing. I believe 20 that although we could -- although we apply the provisions of 21 oection 401 to licensees and applicants, the civil penalties be l
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applied only in instances where there is a formal determination l
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of a violation by an appropriate administrative body, that being i
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-EEOC or the Office of Federal Contract Compliance or the NRC.
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Moreover, rGvocation could be considercd or should be f' '
considered in a case like this only in instance where all 2
3 compliance efforts have failed. This approach would also lessen I the impact of possible complaints designed primarily to negatively 4
3 impact the licensing process, or close facilities, and at the same time increase the likelihood of compliance in view of the 6
sanctions available to the Commission for non-compliance.
7 With regard to provisions that licensees or app. icants l
S show no violation of Section 401, as atcondition of licensing, 9
it would seem that rather than be required to show no violation any evaluation on the part of the Commission would lean toward affirmative effort to achieve equal employment opportunities for 1
women, taking into account affirmative action planning by e
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licensees or applicants and corrective action in the case of formal determinations of discrimination.
15 It would appear to me that thu major thrust of 16l non-discrimination statutes is to provide equitable relief from 17 l
injury resulting from discriminatory practices. Revocation of l
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a license not only could have serious economic consequences, l
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but also a negative impact on a large number of workers in-20 cluding any complainant in view of the unemployment created by i
21!pclosing a YCC facility.
22 In i
'ition, in the case of medical facilities, er 23 manufacturt_. of radio-pharmaceuticals, revocation of a license l
24 would be highly impractical.
I believe that recognizing the
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- xtcnt of tho invidious dicerimination that wom
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3 'of women in the higher paying occupations in the nuclear in-dustry, it is highly desirable for this agency to lend its 4
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8upport to the initiatives of other agencies in the effort to deal with unlawful employment discrimination in' the private 6
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I therefore recommend that the Commission interpret the provisions of 401 to apply not only to the Commission in 9
Its licensing process but also to the employment practices of Aicensees and applicants.
CHAIRMAN AHEARNE: Ed, did you have some kind of a 12 hroposal as to what exactly -- the words you had down here are g-13 k.
"using mini. mal enforcement".
Do..you have a specific descrip-14 tion of what you had proposed?
15 MR. TUCKER: By minimal, I mean that if we are not able 16 to use full. compliance because of a derth of staff and we should 17.
hbe in a position,on a limited basis, to provide technical la assistance to the licensees.
19 COMMISSIONER KENNEDY: Technical assistance in what 20 terms?
21 HR, TUCKER:
In terms of coordinating any problem areas 22 that might be developed as a result of EEOC review of their employment practices with the licensees to help them to comply (q.,
,with the civil right i requirements.
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1f COhMISSIONER KENNEDY: Isn't that what EEOC dcGG?
Yes. EEOC does do that but we still have I
2 MR. TUCKER:
N.
the statutory requirements to enforcement.
3 CHAIRMAN AHEARNE: Kevin?
4j Even though the legal staff has said MR. CORNELL:
5 y u have two alternative courses and you can take either one 6
7l by interpreting the law, I do not think, either one is acceptable,
!; Leaving the law aside, I think as a matter. of policy of this 3
it can decide how vigorously it wants to pursue EEO
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problems in the industry and with its licensees to attempt to g
go only that far, the problem with the -- of applying Section 4 1, at this point'in my mind any way is that it opens up 0
12 the risk of committing a substantial portion of NRC's resources r-13 well as the resources of the whole licensing process to ts' as 14 ifthosetypesofconsiderationsandtomymind, though EEO issues "i
it is not the major mandate of this agency, the are important, t
16 major mandate being public health and safety.
17 What I would recommend is that the Commission make a 18 decision of wanting to apply EEO considerations to its licenseer I
19 but recognizing that it can't do that, under the current law 20 f without a risk of substantial commitment of its resources go 21 back to Congress and say this is what we would like to do, 22f namely be able to apply EEO considerations to licensees without I
i 23 8j opening up the whole adjudicatory process within the agency to litigation of those issues and ask them for clarification 24
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CHAIEGUW AHEARNE:
I gusco I don't quito follow what
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2 kind of clarification you would --
I 3i MR. CORNELL: As I understand it now, if we want to l
t f say we want.:to apply Section 401 to the licensees, that means 4
l 5 j that2the whole panopoly of adjudicatory process at the NRC lives 6 i w uldn.'t be applied to those issues. That is where I think the i
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7l risk is.
If you open up the whole adjudicatory process, that 8l is where the commitment of NRC resources, commitment beyond what the Commission might want to do otherwise.
9 COMMISSIONER KENNEDY: I thought that the major commit-10 ment of resources would prob ~ ably come in the actual direct enforcement, that is inspection enforcement activity where we would have to commit substantial resources on a regular basis to ascertain whether or not complaints were reasonable --
s' 14 MR. CORNELL: My view of that is that the agency can 15 decide what portion of its activity or resources it wants to 16 devote to this argument, whether -- staff and so many billions 17 of dollars or whatever, to assemble those into as good a job as 18 you can given those resources.
19 The rest of the resources go to public health and 20 safety. The problem you run into, it seems to me, is that if 21 the EEO issues are raised in an adjudicatory framework you can 22 get dragged into having to commit more resources in order to 22,
defend your actions.
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COMMISSIONER KENNEDY:
And as the next step, if you
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l do get this raised in the adjudicatory process, then the obvious l
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ct;p-that has to ba taken to protect yourself and to protect I
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2' the process is an intensive in'spection and enforcement effort.
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3 MR. CORNELL: That's correct.
4 MR. TUCKER: Not necessarily, because my own thought is that I don't necessarily agree with the opinion of the 3
Department of Justice-that there should be -- that applicant 6
! for licenses should show no violation cf Section 401 as a 7
condition of licensing. That makes no sense to me mainly because g
if you look at the provisions of the statute, it clearly states 9
that you want force through agency provisions and rules similar
,g to those already established witherespect to racial and other direrimination until Title VI.
As far as Title VI law is concerned, you don't terminat@
13 (v-funds under Title VI unless you show that you cannot achieve la compliance, so you exhaust all efforts to achieve compliance 15 and the way the regulations are written now, any order to 16 terminate the funding as to sit before the Congress for 30 17 days.
18 So the whole idea is to try to get some sort of co-19 operation on the part of the people that you are trying to 20 l
apply the provisions of the law. As far as show no violation 21 and getting involved in the litigation, as I said before, the logical thing to do in evaluating anybody's performance, as l
23 far as EEO is concerned, is what are they doing.
It certainly
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is the pervasiveness of discrimination that precipitated the 25,
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Civil Righto Act of 1964.
2 So it was understood that you have violations but
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3 the question is what.is being done in order to come to grips 4
with those violations.
If you got intp a situation where there i was litigation, I think that the agency would more or less 3
defer to the EEOC or the Office of Federal Contract Compliance 6
tn get a determination from them as to whether or not they 7
have an acceptable affirmative action program and if that is 3
the case, then there would be no reason not to issue the~ license, 9
So you wouldn't get into any litigation as to no g
violation of Section 401 because that is totally unreasonable.
CHAIRHAN AHEARNE: Kevin', could you try again: for me?
I'm having myself some difficulty seeing how you would propose
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the Congress to come out -- to remove 401 issues from conten-14 tion in the adjudicatory process.
15 MR. CORNELL:
That is basically -- in other words, 16 allow the agency to apply whatever standards it wants to 17 licensees but not. open up the adjudicatory -- NRC 's adjudicatory 18 pEocess to litigation of those specific issues.
19 As I understand from the legal staff, the current 20 law would not permit --
21 CHAIRMAN AHEARNE: In other words, if we made the 22 interpretation, it is -- is the 1e;_1 situation that if we go 23 on the side of the interpretation of the law as opposed to 24 l (E
I licensees, we have to apply a throughout process; we can't s'
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22 1; constrain it?
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MR. ENGELHARDT: If the employment practices of the 3
licensees or the applicants for licenses are subject to review 4
by this ccmmission, then it is fair to include that aspect in 5
the contention that would be the issues in a hearing for a 6
construction permit, operating license, amendment. It would also I
7 be subject to enforcement actions on our pa.rt where there were a
Violations detected, complaints made, investigations made,there wa 9
s sufficient substance for the complaint to warrant enforcement action.
10 Then we would proceed through civil penalty, sus-11 pensions and ultimately even termination.
MR. CORNELL: It is those kinds of considerations which
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lead me to be concerned with overcommitting our resources.
14 CHAIRMAN AHEARNE: If I understand --
15 COMMISSIONER BRADFORD: I do.not see how those could 16 be excluded from the licensing process if even now the alle-gation were made that sex discrimination say in the choice of 18 l
reactor operators resulted in less qualifiel people being chosen and therefore, less safety than would otherwise be the 20 case. That is really what the NAACP --
21 VOICE: That is a safety, that would be within the 22 purview of the Commission's authority to concern itself --
23 MR. BICKWIT:
Regardless of hcw you interpret --
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COMMISSIONER BRADFORD: So there is at least a class.
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1 COMMISSIONER KENNEDY:
Th'a argumsnt would not go to
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2 the section of sex discrimination in such a case. The argument 3
would go to whether in fact employee A, having been hired be-e cause of whatever policy the company was following, provided a 5
lower level of safety than would have been achieved had employee 3
B through X been hired by a different policy.
7 COMMISSIONER BRADFORD:
I think that would come out g
looking a lot.like a discrimination case.
9 CHAIRMAN AHEARNE: It would probably be a little diffi-10 uit though in the sense that I think our standards -- we set up standards or whatever qualifications for an operator and once that --
12 COMMISSIONER BRADFORD: That is true but at the same 13 (C
time, if you could show that over a period of 5 years, no woman 14 had ever been admitted to the operator training program, and we 15 had so many applicants, whatever.--
16 CHAIRMAN AHEARNE: I would have thought though that you 17 would.also have to show that those that were approved didn't f
18 meet the standard.
19 COMMISSIONER BRADFORD: I am not sure that is the 20 question I was raising, whether if.you made an allegation like 21
.this:and said that it was safety related, that I think should 22 k jat least get you before the Board.
l COMMISSIONER KENNEDY: But if in fact, and in John's 24 Ifthesis, in fact, the ones that were hired met the standards, then I
I
24 I
tha quoction of safety-wouldn't be the question. It would than
([~
2 be, as you just put it, in the last sylogism, Peter, that in fa t it was a sex discrimination questien.
3-c 4
In that case, then the question arises that we are 5 dealing with, as I understand it here, is that something that 6 we ought to be dealing with in the adjudicatory process or is 7
that something for which the EEOC was specifically established?
8 COMMISSIONER BRADFORD: Let me just ask it as a 9 question. Are you confident that if we rejected a contention like 10 that on the rationale that all of the operators were qualified 1; 'and:therefore, safety was not affected, would a court sustain l
the rejection on our part on that basis?
12 j3 MR. ENGELHARDT:
You mean a way to reject it on the b
y grounds that we have no av % rdty?
COMMISSIF.1R BRADFORD: We had no authority to deal g l ith it. There was no safety effect because all of the applicants w
Fwere qualified.
MR. ENGELHARDT: I thin ~.. that is under NAACP. I think that is probably the way it would come out, that is, we could.
COMMISSIONER BRADFORD: You mean it would be sustained?
20 MR. ENGELHARDT: Yes. We would probably -- something 21 like that could very well be referred to the EEOC for further 22 review so there would not be a total ~ gap and total failure te 23 I followthrough. There would be a mechanism to followthrough on 24
{
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that allegation but it would not be the NRC that would do it. NRC 25 i
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l 25 l
I would raftr it and that would ba whsro wa might ccace in tzrma
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2 of our active involvement in that frame.
l 3
CHAIRA9di AHEARNE: Let me get back to that. I still l want to get one fuI-tner clarification from Kevin. My understanding 4
of your proposal would still leave the enforcement and inspection l 5
6 provision there.
7 When you say go to the Congress for clarification, 3
that clarification of what excluded as being contention in the 9
licensing process, in the adjudicatory process, but would re-tain it as something against which we could take action. Is that 10 correct?
g MR. CORNELL:
That is correct.
I am not a lawyer and I do not know what the fine ramifications of that are, but
(.
in terms of the inspection / enforcement, one of the things we can 14 do is rely on the. EEOC. -
MR. BICKWIT: You could also include it in the licensing process without making it subject to the adjudicatory process.
MR. CORNELL: Adjudicatory versus, that's right, tha t 18 is, it seems to me, where you run into one of the risks, ad-19 judicatory process, licensing process.
20 COMMISSIONER KENNEDY: Precisely what would that mean?
21
.MR. BICKWIT: That means it would be subject to Com-22 mission review. It would not be subject to hearing.
COMMISSIONER KENNEDY:
But it would,for it to be subject 24
(.
i o Commission review, you would require a factual basis and it t
b' 25 !
l l
- - - -. ~
t 26 1
was that noxus that I wra"trying to draw befororin order to
('
2 have a factual basis, we have to have a. substantial inspection 3
effort and it seems to me that is where the resource demands 4i come from.
5 MR. BICKWIT:
I am not arguing that factual point. I 6
am just saying as a legal point, it is perfectly consistent with 7 ' the ' Constitution to say, by legislation ~, everything other than 8j this is subject to hearing and this is not.
MR. TUCKER: There are two ways of looking at it. You 9
get involved with EEOC in terms of referring any sex discrimin-ation complaints ;to the EEOC and then the EEOC fully adjudicated.
That more or less locks the NRC into any determination made by another agency.
u' The other option is for this agency to maintain the flexibility of making that determination..itself.
If COMMISSIONER KENNEDY: Excuse me. If we had a license 16 and we don't assert that as a condition of that license, there 17 be no sex discrimination in terms of our whole licensing process, 18 but rather than that as a matter of resolution by the EEOC and 19 the licensee is obviously expected to observe the law, but that 20 e forcement of the law is the responsibility of the agency es-n 21 tablished for that purpose.
22 When you say we, in essence, are affected by the 23
- decision, well, no.t really any more than we are by decisions 24 l
{.j jof OSHA or a dozen other people who are regulate that company l
25 1
1
I i
27 1
for thcir sp;cific fielda.
i
(~'
~
2i We do not have,to pull back our license or in any N.
3l way affect the license which is there for health and safety 4
purposes because of a decision of the EEOC. It is their decision 5
to enforce it in whatever way the law allows'them to do that.
6 MR. TUCKER: That is, true, but if the provision in 1
7 9.32 remains in our regulations and 19".32 says, "For a violation, 8 if there is sex discrimination, the commission is compelled to 9
apply the civil penalty or revoke," that we've got the final 10 determination. You've got a determination by a -- authority in terms of that particular claim of discrimination.
j) g Itt.vould seem to me that we would be compelled -- of
=ourse we wouldn't have to, but it would seem to me that we would e.
13 I
(_-
!be hardpressed not to take action based on the determination mado
I t:3y the EEOC.
My question is whether or not you wish to give that 16lflexibility or allow some other agency to have that kind of 17 Ratitude or would you want to do it yourself and make that kind l)f determination?
19 COMMISSIONER KENNEDY: To the extent that problem would 20 lirise, isn't it a question of double jeopardy? After all, if that 21 tagency, by.its own terms, acts to enforce its own decision are l
we then required to do so or have not the provisions of our t
23 own regulation been satisfied by the action of that other agency?
24
(}.l MR. TUCKER: Not necessarily because as far as federal i
i 23 a
1 financini acciatanca is concarntd, wh n ths Juctico Dsportm:nt takes action against whatever entity or institution, it might
([
2 3
be with regard to violations of Title VI, there is a concerted effort on the part of the Justice Department to terminate all a
funding, no matter what. agency is providing the funds.
5 It isn't a matter of'just taking the funds from --
6 that one agency is giving. An agency that is provided funds is 7
compelled to withdraw those funds. Anybody is compelled to take 3
some action.
9 COMMISSIONER KENNEDY :
We are not appropriating funds, 10 we are collecting them.
MR. TUCKER:
I know, but I think the argument the 12 Justice Department would have is that there has to be a coopera-tive effort and there are a lot of sanctions that are available 14 to complainants, if there are violations.
15 I don't know if we terminate funds if there are any
'6 funds but we' will also take action on the part of HEW or the 17 NRC or any other agency that is involved in those activities.
18 So we do not think we could get away with just saying that EEOC 19 is taking action; there has been some relief provided and 20 therefore, we are not compelled to do anything on our part.
21 CHAIRMAN AREARNE: Could one of the lawyers respond 22 to that? Do you agree?
23 MR. BICKWIT:
If you interpret the law, interpret 24
('.,
Section 401 as not compelling us to take this into account, which s.'
j 25 was the way I. thought you started, then if EEOC takes action, i
29 I
it hco no force whatconver with respcct to our licensing r^
2 crocess.
u 3,
If you interpret the law the other way and EEOC takes I
4.l a tion, there is no double jeopardy' problem with our taking c
1 5' additional action, revoking a license, only we can revoke the 6 I license.
7 EEOC perhaps make take a different penal action.
3j CHAIRMAN ABEARNE: How do you intepret Part 19.327 9
MR. BICKWIT: Is 19.32 the one that implements for a 10 one?
g)
MR. ENGELEARDT: 19.32 repeats the language of 401 and 12 as placed in the regulations a long time ago at a very early Stage withont our, as far as we can determine, without any g-13 really serious consideration as to the implications of it.
g CHAIRMAN AHEARNE:
The way it is there is different than -once it is there what it means.
MR. BICKWIT: I think the fact that it is there is not 17
- relevant.
As.I said before, I think 401 can be read either way, and depending on how you read 401, I would assume the Commission 19 would read 19.32 the same way.
l 20 i
CEAIRMAN AHEARNE: Let me ask the person who put 19.32, 21,
I whatsdid.you have in mind?
22 MR. TUCKER:
I didn't put it in.
23 CHAIRMAN AHEARNE: You didn't?
24
(}j j
M. TUCKER: No. In fact I wasn't even aware it was in R
25 '
i i'
30 1
thora until tha Juctico DEpcrtmOnt Tank Forco reviewrd tho l
I
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2 regs.
As I pointed out to you before --
3 CHAIRMAN AHEARNE: I thought that was done in the '75 4
letter?
5 MR. TUCKER: In '75 we raiced the issue and I think in i '75 or in the latter part of '76,we got a determination from 6
7 the General Counsel's office that there was no clear statutory authority to deal with licensee activities.
g MR. BICKWIT: Ikould say there is clear authority at 9
this point if the Commission wants to go in that direction. I g
have absolutely no problems with it, with respect to sex dis-crimina tion.
12 COMMISSIONER KENNEDY: As a matter of law?
13 C
MR.BICKWIT: As a matter of law.
14 CHAIRMAN AHEARNE:
19.32 was put in in 1975, on January 15 2,1975. Kevin, where does EEO's office come out on the issue 2
16 bf should this kind of protection be extended to totally the 17 pmployees, not us doing it necessarily, but should that protection 18 ;
be extended to utility employees?
19 MR. CORNELL: The feeling is that it should be a caveat 20 that this agency's major concern is --
21 CHAIRMAN AHEARNE: I understand that. How about other 22.
iforms of discrimination as far as licensees go; where do we 23 stand on that?
24
{
l MR. TUCKER: My personal opinion is that if we decide to 25 l
t 1
. _ _.. ~. -
~
i 31
!cnforca 401 in tcrma of scx dicerimination, thcn ws should ask 1
I'1 2, for a change of legislation to cover all protected. groups be-s 3
cause if you leave it the way it is, it is just wcmen being i
4 protected and any other individuals would be at a disadvantage l
5 because the focus will be just on that protected clause.
CHAIRMAN AHEARNE: There is no other piece of legis-6 lation that tracks --
7 MR. ENGELHARDT: That is Title VI of the Civil Rights g
Act that deals with the other discrimination but it only catches 9
us in terms of financial assistance, not licensee or licensee activity.
The difference with Section 401 is that it has the 12 a biguity with regard to the application of sex discrimination.
m Along those lines, as far as Title VI is concerned, there are 14 obvious questions as to what the statute intended with respect 15
,to licensees but I do not think there is any question with 16l cespect to how it applies to Title VI or the fact that it does i
17 apply to Title VI.
18 The only problem is that as far as Title VI is con-19 lcerned for all agencies, Title VI'specifically excluded employ-20 llme t practices of recipients unless the primary purpose of the n
21 assistance is employment like the CETA programs.
22 i
Now the Justice Department intends tha t Section 401 23f not only applies to Title VI activities, but it also applies to i
24
{j the employment practices of those recipients.
Now, we have l
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i 32 i
1! 26 ststco thct ara covered under Section 274 of the Atomic
(
2! Energy Act and if a determination is going to be made as to 3
whether or not we should enforce Section 401 as it applies to 4l licensees on the basis of availability of our staff, or I think 5 i What you have to recognize is that even though the Title VI I
l 6
portion is going to be a separate paper, you might turn around 7
2 or 3 months from now in dealing with Title VI and recognize that we are going to have to ccmmit staff to deal with that 8
portion of it.
9 I do not think any consideration of staffing is going 10 to have to take into consideration what is going to happen to Title VI when it comes up.
l MR. BICKWIT: Could I ask a question? You say Title VI specifically says that its only application is to recipients 14
!where the purpose.of the program is employment-related?
'5 '
MR. TUCKER: That's right.
16 MR. BICKWIT: Section 401 does not say that, however?
17 MR. TUCKER: No. Section 401 is amending Title VI and 18 is specifically included in the employment practices as' they 19 pertain to women. That is the Justice Department determination.
20 Qur staff does not necessarily agree with that interpretation 21 Mith the Department of Justice. That does not necessarily include 22Ifmployment practices as far as women are concerned. This is what 23[
l Justice is concerned with.
24 i k_/
l MR. BICKWIT:
Justice is contending that -- is not
^ -
25 h.
subject to this limitation of Title VI.
i
i 1
33 1
MR. TUCKER: That's correct.
(~-
2, MR. BICKWIT: I would agree with that, and I would agree, 3
therefore, that our right of regulation ought to be changed in 4,
that regard.
5 MR. TUCKER. But it does create certain problems in terms of enforcement or doing compliance review because not only are you looking at the beneficiaries of the Title VI fund but 7
you are also looking at the employment practices of those state g
agencies receiving the assistance.
9 MR. BICKWIT: Our regulation says that only when the purpose of the assistance is employment-related.
MR. TUCKER: That's correct.
12 MR. BICKWIT:
Will we assert jurisdiction?
g-13
\\'
COMMISSIONER KENNEDY: That is consistent with the NAACP 14 MR. TUCKER: Right.
15 MR. BICKWIT: Consistent with what NAACP -- with the 16 case?
17 COMMISSIONER KENNEDY: Yes.
18 MR. BICKWIT: That case relates to those who are regu-19 lated by agenciesc We re not talking about those who are assisted 20 by agencies.
21 MR. TUCKER: That's right.
22 MR. BICKWIT: So that the NAACP does not apply to that i
i 23 !
lsituation.
I 24 g"*,
COMMISSIONER KENNEDY: There are others *who would (C/
25 4
- ~,....
34 I
cegsrt that wq almost nLvor assist any of our own --
4 2
COMMISSIONER KENNEDY:
What the agresment states --
3 I hadn't thought of that one.
4 MR. BICKWIT: With respect to what.the agreement l' states, we assist others; don ' t we? We train people.
5 MR. TUCKER:
We train --
MR. BICKWIT: With respect to those recipients, it 7
seems to me our jurisdiction extends to all employment practices g
of those recipients.
COMMISSIONER KENNEDY: Under Section 401, there is 10 financial assistance involved and therefore, presumably it 11 would apply..
12 MR. BICKWIT: That's right. The question is, do we 13 look at all of the employment practices that are implicated by 14 our funding or do we look at only those practices where our 15 purpose is employment-related?
16 MR. TUCKER: No.
17 COMMISSIONER KENNEDY: Excuse me. If it is the former, 18 then. one would have a difficult time finding out where in the 19 state we would draw the line limiting our influence.
20 MR.BICKWIT:
It seems to me we would draw it at the 21 point where our funding is no longer applicable. If we provide 22Omoney for regulation of nuclear power through the agreement 23 state program, then it seems to me we would look at the employ-24
{' ;
ment practices of the state with respect to the regulation of 25 j
- nuclear power.
l' meesem g me e e.es +
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4
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35 1 (...
If wa found --
2 COMMISSIONER KENNEDY: And as to the licensees in that I'.
s 3
state, who might --
4 MR. BICKWIT: I am not talking about --
COMMISSIONER KENNEDY: I'm trying to find out how far 5
it g es because that is where the money might ultimately go, in 6
direct application against the licensing activities, vis a vis 7
those licensees in the state.
8 MR. BICKWIT: I am talking, at this point, about the 9
a tivities of the state, the regulatory activities of the state, 10 which are assisted by our funding.
I would be inclined to read Section 401 as saying that whenever there is discrimination in employment practices, with respect to the receipt of that
\\'
money,that our jurisdiction is implicated. Our regulation 14 doesn ' t say that..
That is a different issue from the one you 15 are considering, but it seems to me an important issue.
16 It is one that from a legal standpoint, I would 17 suggest the Commission should consider acting on.
18 COMMISSIONER KENNEDY: That is a rule change which 19 ought to get consideration by the states.
20 MR. BICKWIT: It is a rule change that we ought to 21 consider, the Commission ought to consider.
22 COMMISSIONER KENNEDY: And then a comment by the 23 states is what I am saying.
24
('
MR. BICKWIT:
Yes, I see. Certainly.
\\_-
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25
36 1
CHAIRMAN AHEARNE: Either reading of your intarpretatio;1
{ '
2 would lead you to that because that is ' direct financial assis-3 tance.
4 MR. BICKWIT: That's right. That does not relate to 3
the question of our authority with respect to licensing.
CEAIRMAN AHEARNE: Right. Ed, do you have any policy 6
comment?
7
^" ^ A"*
"9 Y " ##* ** Y 8
sympathetic to Ed's proposal. I think what it really needs here 9
is to understand the details of how that might! be implemented 10 as opposed to a more philosophical approach to it.
I think Commissioner Kennedy puts his finger on what sort of call on resources you have, personnel inspections before 13 licenses are issued to determine that there is existing compli-14 ance and then continued compliance beyond that and the mechanismo.
15 COMMISSIONER KENNEDY: Can I interrupt there?
I'm 16 thinking we are not talking about 70 reactors. We are talking 17 about several hundred hospitals and several hundred more clinics 18 and all manner of small businesses.
19 hA. CORNELL: What percentage of those institutions are 20 covered under other statutes?
21 MR. BICKWIT: All of them.
22 MR. CORNELL: With respect to EEO, in other words, they 23 i receive financial support 24
{'~ ',
MR. RAGAN: All of them.
25
I 37 1
COMMISSIONER KENNEDY: 15 or more percent.
f
2j MR. RAGAN:
Everyone that has 15 or more people would i
i 3l be -- otherwise --
. 4 MR. BICKWIT:
It is not,the financial assistance that 8
3
. governs-them,it is the fact that they have 15 or more people.
MR. TUCKER: The biggest drain on resources is not so 6
much in the office of EEO in terms of evaluation of licensees 7
and their performance because the FCC, which is the only other g
r gulatory agency that has this kind of program, has about 6,000 e
9 licensees, if I am not mistaken. They do about one-third of their licensees a year. That is probably by and large a desk a dit of their performance. They have three senior level people u
who do that kind of review.
(.
If you equate' that with the NRC licensing, which 14 totals about 15,000 or somewhere around there, you can figure 15
' out -- you could conceivably do the kind of audit that is neces-16 sary in terms of coordinating with the EECC effort or contract 17 compliance program, finding out what the situation is, working la with the licensee and dealing in the problem areas with that 19 limited staf f.
20 The big drain would probably be in the Office of the 21 Inspector and Auditor because of the number of complaints we 22 are getting.
23 l
l CHAIRMAN AHEARNT: That is why Mr. Cummings is here.
24 l Q_'i MR. TUCKER:
If we were to enforce, vou could
/.
l 25 !
M etchi w e am esp =
- m o+6 ehm e h mmew
-p,a 46eex-
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.&Myasw gam-eweee w wee.gw
38 1 concrivsbly expnct mayho 100 plus complaints the first year 2
after you go into rule-making and from there on out, there is 3 no telling because of the status of women in the industry, so 4l that would be the big drain. That is where you would require the 5 m st resources in investigating, if we were to investigate, but there is still the option of getting EEOC to investigate for us.
~
7 COMMISSIONER KENNEDY:
Having investigated, that is a big drain but having investigated, one has to do something with 9
the investigation. One has to, in a sense, adjudicate it and 11 {lis no small task reachrconclusions as to what he believes the fact suggests. That 12 Who is going to have.to'do that ultimately? All too 13 I
of ten those questions have to reside here and I get concerned, 14 ts I always do, not about philosophy -- it seems to me I think 15 all of us are dedicated to the proposition that sex discrimination 16 simply to the extent it exists, ought to go; it should not be i
17 tolerated under any circumstances.
18 Having said that, I keep coming back to my basic view 19 that individual agencies of government cannot, in themselves, 20 take on the responsibilities of all other agencies of government.
21 We saw a shop the other day where we were talking about the 22 regulation of -- the question of misadministration and I counted 23 and there were 11 agencies of the federal government, heavens 24 knows how many in the state government, regulating the medical e.
I
(_/
25 l
I
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39 1
usca of icotopes. That is probably.more peoplo -- if it was one
~
2 person per agency, per year, visiting a hospital, that is 3
probably more people than the hospital can afford to have running 4
the program.
S
'I keep having that feeling that thisiis another case 6
in which, however meritorious the basic principle, you have that 7
agency which is reaching out to expand its statutory mandate, to 8
assume a principle and then assume a direct relationship to its 9
enforcement.
10 I am not: sure that, in the last analysis, is in the p blic interest because I cannot see how it can be done without 11 in some way detracting from the basic mission which the agency g
was created by statute to perform.
g MR. TUCKER: I think that is a good argument as far as with respect to getting some other agency to investigate and ltoadjudicateforthisagency,butIdonotthinkitdetracts from the agency's responsibility to assist in enforcing those civil rights statutes.
It does not seem to preclude the agency from retaining i
19 the option of applying the civil penalty or revoking the license 20 b
i ased on a determination made by some other body. I think what 21 me should do possibly is look at the possibility of entering into 22lan l
l l
agreement with the EEOC to investigate and adjudicate and for 2
!lthe Commission to take into consideration, or somewhere in the 24 I
h Commission, for the Ccmmission to consider the findings of that 25
..-w.u.h......:
w,
i 40 1
cdministrativa body.
2 CHAIRMAN ABEARNE: Ed, how does the FCC handle -- you 3
say they have these three senior people reviewing it. How do they 4
handle resolution when they find something out of line? What 5
happens; do those people make the determination?
MR. TUCKER: If there is a formal ccepliant, discrimin-6 ation is referred to the EECC. The EEOC', after making a pre-7 liminary investigation, in concert with the FCC, will issue a g
show cause order as to why the license should not be terminated.
9 Through conference and conciliation, they try to g
resolve the matter. If not, then they go into a full scale in-t vestigation and the EEOC makes a determination or makes a 12 recommendation to the FCC as to the disposition.
CHAIRMAN AHEARNE: But it is license revocation that is 14 the penalty, that is considered?
15 MR. TUCKEft: That is' correct. I think to recognize 16 the kind of sanction we are talking about, tha t, in itself, is 17 an incentive for the various institutions to comply with the 18 regulations. Certainly I do not think we should get into the 19 business of trying to police the industry.
20 I think we should be in the business of assisting, just 21 like we do with our other standards and regulations and whatnot.
22 I[.Et would appear to me that recognizing the ramifications of a 23 :
l violation, certainly this will lend itself to compliance on the 24
,C1 vpart of the licensee but I think that the point the RCCP is A_7 i
25 l
.. ~....
. ----, -.-- - ~.
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3-
41 4
I making and EEOC is making is that you have to have members in j
(
2 Order to effectuate or to achieve compliance.
3 I think there is no great leverage that certainly 4
this agency has than the: license itself.
5 COMMISSIONER KENNEDY: That is a reasonable argument.
COMMISSIONER HENDR E: If there were not other agencies 6
7 engaged in this endeavor, I think we would have a responsibility to include it on the list of things that we deal with in grant-8 ing licenses and inspecting and enforcing against license 9
conditions and so on.
10 There are other -- it seems to me we are hardpressed
- )
to maintain what are clearly our primary responsibilities which g
no other agency covers for the activities that we regulate.
- 3 I
(e I find it very hard to justify, under those circumstances, going out past alternative one.
COMMISSIONER BRADFORD: If you -did this whr : I was out 16 Of the room, I'll catch up with tlue transcript but what does 17 alternative one assume about the research program, the research la contract?
19 COMMISSIONER HENDRIE:
They're covered; they get 20 financial assistance. and.the boilerplate of their contract says 21 they shall not and fsrthermore, all of them have to have 22 affirmative action programs, reviews and so on.
23 I f
MR. ENGELHARDT: Alternative one is designed to govern 24
(};.
these paper licensees and applicants for licenses only. The I
l l
l
=
_= _.
42 1
research contracts,as Commissioner Hendrie has indicated, are
! covered by another body of law that assures that there be no n
4 I
s-discrimination.
3 Financial assistance to the state agreements is coverec.
jin Part 4 and that is dealt with as a separate matter.
.3 1
MR.BICKWIT: Why are the research, resumes of research 6
assistants not referenced in the paper? Are they treated 7
differently?
8 i
COMMISSIONER EENDRIE: I guess it is assumed that they 9
l are fully covered.
10 j
MR. RAGAN: Any contract would have the contract clause li l
!Prohibiting -
12 l
MR. BICKWIT:
In your view, are they covered by 4017 e
13 v
MR. RAGAN: If you are talking about -- we really 14 hav e not got into the grants business in terms of which would I
15 he in terms of financial assistance, kind of like that.
16 MR. BICKWIT:
I see.
17 MR. RAGAN: Otherwise.--
18 CHAIRMAN AHEARNE: The paper is focused on licenses.
19 MR. BICKWIT: There is a reference in the paper on 20 page seven, footnote six, to financial assistance and those that 21 receive it. However, you are referring to contractors, not just 22 dose receiving financial assistance but those who are contract-
')3 ing.
24 MR. RAGAN: True.
"i
., c COMMISSIONER BRADFORD:
If we apply alternative two, L
_.=. = ---.,
43 1
how would you see it working out in practice. In the construc-('
2 tion side, would it then apply to contractor or subcontractors?
3 MR. TUCKER:
We did this -- I don't know how we come 4
out on that. Do you recall, Tom?
5 MR. RAGAN:
I think the answer was that in particular 6
you would be talking about the licensee or the applicant, the 7
constructor. or his contractor for construction, I think would be a dif f erent matter.
g COMMISSIONER HENDRIE: You would operate:it ~ just the 9
[ssne way you do a research contract. You give Brookhaven money l
to do a piece of research and they have to subcontract a piece,
! hire two consultants, a subcontractor over here, a subcontractor 12 l
i Cver there.
There is basic ~non-discrimination language with i
(-
13
\\'
regard to sex,' race and everything else which falls right 14 I
through the basic Brookhaven funding, NRC down to the consulting 15 agreements and the subcontracts.
16 What you do in this case is to make it a condition of 17 this construction permit, non-discrimination on certain grounds la of sex and in order for the licensee to show conformance without 19 l cense conditioning, he would have to show that all of his i
agreements with subcontractors and his agents would forward that 21 l
language on down the line and require them, his agents, intern 22 l's the subcontractor, and pass it on down the line.
a l
23 Then you have the problem you are going to have some 24
'.S time or other, perhaps across the whole board, but at'least in l
25
'~
_. =
= -..,. _..... _ - _,
44 l
I 1
selected cases, you are going to have to go out there and l
('
2 verify that all the way down the line and it is going to be a s
3
'very resource intensive activity. That is my concern.
COMMISSIONER KENNEDY:
And let me add of staff that 4
l 5
We presently do not have, I think, how many people do we have in i
i 6
our inspection staff who are fully capable of inspecting against l
I 7
ithis very complex law?
This has a very simple proposition which 1
1u derlies it but it is not all that simple and the cases need n
g to be examined very, very carefully.
9 CHAIRMAN AHEARNE: I think Ed would suggest using EEOC ftaff.
COMMISSIONER KENNEDY:
You would refer that to the 12
.EEOC?
13 1
COMMISSIONER HENDRIE:
That is a great way to tie up 14 5 license.
I do not want the plant built in my neighborhood l$nd I arrange to make the complaint to EEOC, the NRC is then 16 l
hung with regard to license, going forward with the license, the l
17
'EEOC is backlogged, that's 3 years before they can get there and 18 boy, that's even a better way to kill the project, then. the 19 lhealth and safety-regulations.
20 CHAIRMAN AHE RNE: 'What about under Kevin's proposal 21 l
though?
22 COMMISSIONER HENDRIE: All that Kevin's proposal is is l
23 l
to keep it out of the adjudicatory process. It wouldn't affect 24 O
this.
s.'
25
~
45 I
CHAIRMAN AEEARNE: But it would certainly affect r
2 the issue you just raised.
3 COMMISSIONER HENDRIE: 1 do not think so unless you rule specifically that licenses will not be held up or delayed 4
5 in any fashion on account of these provisions.
6 MR. TUCKER:
It doesn't make any sense to penalize 7
the licensee or the applicants without any formal determination 8
of wrongdoing.
It would seem to me you would have to wait unti l 9
there was some kind of formal determination, not just on an 10 allegation forkholding up a license.
11 COMMISSIONER KENNEDY: Not in our adjudicatory 12 Process. The allegation would have to be disposed of.
CHAIRMAN AHEARNE: What I am trying to find out is 13 14 in Kevin's proposal was to construct -- was it construct --
15 MR. KEVIN: The rationale as far as public health and s fety goes seems to me is that you don't want to have the 16 a
Plant built and find out af terwards that it is not safe 'so tha< :
17 18 is in the case of an EEO issue, you can probably let the l
19 license go ahead and at some point down the road, you find 20 they are not complying, then you come out with what sanction a
21 you want.
d ai 22 COMMISSIONER HENDRIE: But you've got to get the d
23 legislation squared away in order to be able to --
I 24 MR. CORNELL: I realize that.
25 CHAIRMAN AHEARNE: That is what his proposal was,
S a
46
)
legislation.
~
MR. CORNELI., My position was I don't like what the 2
3 lawyers are saying their alternatives are.
4 MR. BICKWIT: I agree with you.
CHAIRMAN AHEARNE: Peter, did you have any other --
5 COMMISSIONER BRADFORD:
With regard to the current 6
situation involved, if there were an allocation of sex dis-7 8 crimination at a construction site today, how would that be pursued, the complainant would go to the EEOC?
9 MR. TUCKER: The complainant could go to the EEOC; 10 they could go to the union; they could go to a state agency or jj g
ey could come to the NRC. The probiem is that we have the 13 tegulation but we have no way of enforcing it or investigating it. So we are really in the mow now.
g We could possibly be compelled to do something that we have no control over.
COMMISSIONER KENNEDY: If that complainant came to the RC, for example, and one of our inspectors was on the grounds, 18 t
~
and a complainant approached him and said, there is rampant l
19 sex discrimination going on in this company and it should be 20 s
investigated, there is.nothing which prevents us -- indeed, I 21 would think plenty that encourages us to immediately pick up a
22 the telephone and report that fact, followed by a memorandum or i
a telegram to the EEOC.
(~
MR. TUCKER: That's right.
v 25 i
47 1
COMMISSIONER KENNEDY:
Nothing I know prevents us from doing that.
2 3
MR. TUCKER:
That's correct.
4 MR. ENGELHARDT:
In fact, isn't that the procedure 5
that you would follow at this juncture?
MR. TUCKER:
We don't know. We had a case about 2 6
Ye'ars ago and we didn't know what we were going to do with it, 7
8 mainly because there was that question, should we ask our Office 9
of Inspector and Auditor to investigate it?
Should I&E in-10 vestigate it? Should we refer it to EEOC, but that stillcbesn't jj take care of the problem of having that regulation there, 19.32.
COMMISSIONER HENDRIE:
What did you finally do with 12 it?
13 MR. TUCKER: It went away.
ja I" 9 15 n
chaH of a complaint, ym get yonself and you omce is, 16 in effect, involved in.the case in a way that may cause 17 jg difficulty or what? You can certainly advise the complainant and say, here is what you want to do. Call the EEOC and here g
39 is the phone number and you may even know some person to talk i
20 to or here is the address to write. You can certainly do that.
g
- i If you send memoranda, have we then become the a
22 Complainant? I don't know.
t MR. TUCKER:
No. EEOC is responsible for investigaticm
~(-
25 of these kinds of complaints in the private sector, so it would
~
48 1
certainly be appropriate for them to investigate it, even 2
recognizing the prohibition that we have in our regulations i
3 because we don't have the resources and.the capability of 4
investigating them possibly.
So there would be no problem; 5
we don't become the complainant; we are just referring the 6
matter to the EEOC.
7 The extent of our involvement in the adjudication 8
of that complaint is questionable. We may not have any involve-9 ment. EEOC might decide to do it all on their own and just 10 n tify the agency of their findings.
11 The jeopardy is that if we were to get a complaint 12 we w uld have no idea as to the reason behind the complaint 13 nd even if we were to get any ruling from the EEOC that there j4 was sex discrimination, and some action was taken on the part f the EEOC, it is quite possible that counsel for the com-15 plainant might raise questions as to whether or not the announce-16 ment should, in addition, take action like complying with the 37 ivil penalty because we have it on the books. That is the 18 problem.
g 39 COMMISSIONER KENNEDY:
And suppose they did what our 20 imminent counsel -- they quit.
q g
ij g
COMMISSIONER BRADFORD: The point of our acting on the' i
ivil penalty?
23 COMMISSIONER KENNEDY: No. If attorney for the com-g
(
plainant, having received a judgment by the EEOC that-in fact 25
- s..
49 the complaint was valid and that the sex discrimination had
)
occurred, if the complainant's attorney then came to the NRC 2
with a demand for enforcement action, under our regulations --
3 4
MR. BICKWIT:
And we chose to go forward, could we?
5 COMMISSIONER KENNEDY: No. What would his rights be; hat could he expect us to do?
6 7
CHAIRMAN AHEARNE: What are we required to do?
8 COMMISSIONER KENNEDY: What are we required to do?
9 MR. BICKWIT: It would depend how you read Section 401 10 CRAIRMAN AHEARNE: What are the alternatives?
MR. TUCKER: How would you read it in relation to g
19.327 g
MR. BICKWIT: I read 19.32 the same way I read 401, 13 which is s
g that I have, unfortunate as it is, I agree with --
entirely that you can read that anyway you can read it as requiring you to exercise this jurisdiction or as not allowing 17 'vou to exercise this jurisdiction.
MR. ENGELHARDT: Let me answer that question directly.
t' Under alternative one, as I said, we would do nothing; under 5
19 alternative two, we would bring into play whatever enforcement 20 s
-- adjudicatory enforcement powers that we might have.
4 i
=
21 1
'i MR. BICKWIT:
i 22 And as a legal matter, you are satisfied E
with going either way.
23 COMMISSIONER BRADFORD: Let us say that somehow this
(~
licensee had a license both from ' DOE and us, the person went to
- i..
25
50
)
both places with the same complaint and this. agency said, we are precluded from taking any action and DOE thought the 2
licensee deferred penalty. Do you also seriously maintain 3
both positions would be maintained?
j MR. BICKWIT: I do.
5 COMMISSIONER BRADFORD: I do not see how a court 6
could say that two dyametrically opposed interpretations of 7
the law could apply to the same person on the same track with 8
the same licensee.
I do not know if that would be a reasonable 9
Outcome.
10 MR. BICKWIT: I do believe that courts give deference to agencies in their interpretations of laws and that in each case, it would be possible for the court to defer to the agency on that question, especially in the case where it is as am-biguous as this one.
I should mention that as I read this paper, DOE has decided -- has not interpreted this language to apply to' licensees.
18 MR. TUCKER: They have.
19 MR. BICKWIT: On page four --
g 20 CHAIRMAN AHEARNE:
j.
21
~
I was trying to think back therc, 4
Hudson, as to the. advice you had been giving me in our previous s
22 5
r les, o
t 23 3
COMMISSIONER HENDRIE: Is there.an alternative one?
24 l'
MR. RAGAN: That is the present posture. That is the 25
51 posture at the present time.
1 MR. BICKWIT:
But I do believe --
2 COMMISSIONER KENNEDY: As is, is ICC AB?
3 MR. BICKWIT: ICC does not have a Section 401.
4 CHAIRMAN AHEARNE: 401 applies to DOE.
5 COMMISSIONER KENNEDY: Righ t.
6 MR. BICKWIT: Aside from that, their policies are the 7
equivalent essentially --
of alternative one.
8 COMMISSIONER KENNEDY: Of alternative one, yes.
9 MR. BICKWIT: But I am saying that legally I do not 10 believe they could do otherwise.;
ij C MMISSIONER KENNEDY: Right.
O MR. BICKWIT: We can.
13 CHAIRMAN AHEARNE: Peter, did you have any?
t j4 COMMISSIONER BRADFORD: Just one more. Does a f firma-g tive action come into play under 401; that is obviously com-g plaints related to discriminatory behavior too.
j7 CHAIRMAN AHEARNE: It turns out just sex discrimina-18
'W' I
19 COMMISSIONER BRADFORD: Right, but would failure to l
g have an affirmative a,ction program be an allegation that one q
g I
could make or would you have to show overt acts of sexual j
8 discrimination?
23 MR. BICKWIT: I would think -- an affirmative 24
((
action program --
+
52 COMMISSIONER KENNEDY: That begs the question of how j
d or effective a program is, I guess, does it?
2 g
COMMISSIONER HENDRIE: No, because you then get into 3
whether it is alleged that yes, there is a nominal program 4
but it is a fraud and-a dillusion and now we have to look at 3
the merits of the program and decide whether it is adequate and so on.
8 MR. BICKWIT: It is not clear but --
9 CHAIRMAN AHEARNE: I guess I have to think some more about it. Obviously the law is quite unclear. I think that justice is quite clear as far as the country is concerned.
Discrimination is not to be allowed of any kind. It is really i
not clear how that is to be applied in this case.
14 My experience from the Defense Department, trying to run similar programs is that in order to -really have it 16 be effective, you need scme leverage. So I would certainly 17 agree with it that although the EEOC is an agency established 2;
to investigate those kinds of complaints, it is the leverage 19 in the case of if you have contracts being able to take up 8
20 where the contract -- if you have licenses being able to take l
21 l
up with2the license or take out some other kind of strict s
22 enforcement action.
23 E
MR. BICKWIT: Could I make one other point in that 24
(
regard. I believe that the EEOC does not have authority to 25 v
53 y
adjudicate directly with respect to private violators. My 2
understanding is that the EEOC's only authority is to take the 3
violator to court.
It cannot ' impose sanctions on its own.
4 They can investigate it but they have no authority to impose sanctions on their own.
5 CHAIRMAN AHEARNE: Then --
COMMISSIONER KENNEDY: As a philosophical matter, I 7
am not sure how I understand that. If the agency which was g
established especially to implement and enforce this law has 9
authority to do anything more than take a violator in the n
10 civil sector before the courts, I am not sure why other agencies were not established to umbrella the law but certainly have an obligation to do so, should have a greater authority.
CHAIRMAN AHEARNE: I think it is fairly clear because s
those other agencies are taking actions on behalf of the federal government.
In one case, you give contractual work, money, you are 'all wanting contracts.
In another case, on behalf of the taxpayer, you are s;
regulating the industry, a radio station's license or in our g
19
=ase, we are awarding the license to operate a power plant, 20 EEOC is awarding nothing.
4*
21 l
COMMISSIONER KENNEDY: They could be awarding penalties i
22 indeed, just as we do in our enforcement preceedings.
2 23 2
CHAIRMAN AHEARNE: But the civil court system is 24
('
established I think to award penalties. If it is only penalties,
%s 25
0 54 1
our proceeding, the heart of it still is this license.
e.
2 COMMISSIONER KENNEDY: But how can we enforce --
(
3 MR. BICKWIT: We could impose civil penalties.
4 COMMISSIONER KENNEDY: Civil penalties, precisely.
5 That is my point.
6 CHAIRMAN AHEARNE: But the civil penalty is the 7
lower edge working up to the revocation of license. I think 8
the reason you have the intermediate is because it is a 9
part of a spectrum and the end of that spectrum is the absolutc n) penalty, the license. It is all really locked into that.
11 MR. TUCKEP: I guess it is quite possible that if the 12 agency decided to enforce that, they may not decide to use 13 the civil penalty.
14 MR. ENGELHARDT: In every instance, you start with is the authority vested with each individual agency, and each 16 agency has a varying scope of statutory authority.
I'7 COMMISSIONER KENNEDY: I guess I am surprised that 18 the statutory of this particular agency, the one established j
19 for this purpose, did not provide the authorities which in a i
20 ertain tense we could be called on to take.
c f
2 MR. BICKWIT:- My own view as to why:that is so is i,
23 j
j 22 a certain congressional distrust of the EEOC.
I i
{
23 CHAIRMAN AHEARNE: That, I think, is a separate issue, i
i MR. BICKWIT: But I think it is the answer.to_your 24 question.
25
e
~ :. - ?
55 CHAIRMAN AHEARNE: There are a lot df complexities j
in expanding into the states. Right now the agency tends to 2
be overwhelmed with health and safety issues. I guess what I 3
am -- first, I am interested in making sure that we get this 4
reg 19.32 straightened out and either we do have to get, since 5
it seems to be clear that there is an application of the states We have to begin that process that is necessary to contact 7
them. I am not sure whether that should be standards or OGC.
8 MR. BICKWIT: Why don't we get tapped to work together 9
to get a paper out there?
10 CHAIRMAN AHEARNE: I am finding myself in a very odd g
situation in that in other areas, I have argued that we ought to exclude anything other than health and safety from how we g.
b' spend our time.
Kevin, I am interested in the approach you propose and I guess for myself perscnally I would be interested in j
seeing something more concrete on how that could be -- what kind of legislative proposal that would be, but I would like tc have it cover all types of discrimination, not just the one.
3 19 t
I have to think some more for myself on this.
i 8
20 l
s I would tend,to agree that if we are going to extend 21 ourselves into that area, which I share I think Commissioner l
s 22 l
r l
8 Kennedy's point that philosophically we are all in agreement l
23 1
3 that it gets to be the specifics of whether some of us disagree l
24
{
On which agency's role it ought to be.
6 6
56 j
Before doing that extension, I would probably feel m re mf rtable if we did cycle it through te Congress.
2
\\
COMMISSIONER KENNEDY:
The issue that I raised 3
ea lier, in trying to think this through, I am not now clear r
5 n option to alternative two approach were something like that to be followed, how it would relate to a utility company, which has one reactor licensed by us and ten coal and oil-fired 7
plants.
g How far in that company would our reach extend to 9
that portion of the company directly regulated by us or to the company as a whole since.it is regulated by us?
MR. BICKWIT: I would say go ahead.
MR. ENGELHARDT: I think we can analogize through our antitrust responsibilities where we deal with the same sort of 14 situations, looking at a plant but we look at the whole service area.
In other words, how does that company pperate in its total service area?
17 I can see that we could look, in this instance at the s;
utility as a totality, and its operations in' terms of its pro-g 19 gram.
2o COMMISSIONER HENDRIE: You have another example and a
i 21
.j that is with regard to the contract, the non-discrimination i
22 d
provisions 'in government contracts. It doesn't supply just to 23 1
the.little subgroup or project group or division that the 24 project is being carried out by, it is the whole corporation.
25
~.
u_ i.
57 1
You get a contract with General Motors and this covers General 2
Motors.
3 CHAIRMAN AHEARNE: I know, I use that.
4 MR. BICKWIT: I would be inclined to go the other 5
way in reading this statate, to say that would only --
6 COMMISSIONER KENNEDY: Let me just suggest for me 7
that is a very important question because it is one thing to 8
alk about Indian Point and it is another thing to talk about 9
Commonwealth Edison.
10 COMMISSIONER HENDRIE:
Consolidated Edison.
jj COMMISSIONER KENNEDY: I am talking abcut Commonwealth 12 too. It is another thing to talk about Turkey Point or Crystal Point. It is another thing to talk about Florida Power. It is 13 34 one thing to talk about middle sell utilities on the one hand, r a particular plant near New Orleans on another.
15 16 What I am trying to say is that we will end up trying 37 to enforce this in half the United States. I just do not think 18 ve are competent or ever will be.
I MR. TUCKER: The general feeling as far as Title VI
{g j9 e forcement is, is to just deal with that entity in the organi-n g
zation that is receiving the financial assistance. Obviously q
g nj s broad as the application of this could be, I do not think a
g f
it is unreasonable, even if it is general practice, just to g
i cover the whole entity, just to focus on the rights activities.
g
'[-
a u
ae e some h g 25
58 Kevin would have to look at and construct.
I know that Joe is right because I was working in trying to get a General 2
M tors plant which manufactured certain type of plant for the 3
Defense Department to comply and we took action against the General Motors Corporation in its entirety.
COMMISSIONER KENNEDY: I wish, as this paper is being developed, that question would be looked into.
COMMISSIONER HENDRIE: The practice is very wide-spread, if you cover the whole corporate entity, when any part of it comes.under the purview of these laws.
10 MR. BICKWIT: The language of the statute.
11 COMMISSIONER HENDRIE: A university gets a little 12 Piece of government grant money.
13 CHAIRMAN AHEARNE: Whatever we do, we have to keep in la mind that we shouldn't adversely our own health and safety 15 abilities. The other point is that we shouldn't allow, as we 16 begin to look at the kind of issue, we shouldn't forget that the 17 agency itself does not have exactly the most laudible record l
18 in this area.
19 MR. TUCKER: The only question I would ask as far as 20 that is concerned, not to much do we have, but do we have the 21 flexibility considering the unique nature of Section 401 to 22Ilimit the applicability of it? Couldn't we just limit it to l
23 the license activity?
f" MR. BICKWIT: I'm clear we could.
v 25 au
, n.. -.
.-. l 59 COMMISSIONER KENNEDY: Let me remind you this is one 3
of Kennedy's principles, that however' limited it may be today, 2
if there is any possibility that it can be broadened, it will 3
be.
You ought to look down the road and see what the broadest construction may be, prepare for those contingencies, then 5
set it anyway you want, but prepare for that contingency because 6
sooner or later that is where you will be. It is just inevit-7 able.
g CHAIRMAN AHEARNE: Kevin, will you try to look into that again? Thank you, Ed, it is a tough issue.
(h'hereupon, the public meeting concluded at 3:33 p.m.)
12 13 e
14 15 16 17 18 19 20 21 22 23 2a (L
25 i
i